Correa v. W. A. Ramsay, Ltd.

• Decision Date: 15 June 1933
• Docket Number: No. 2090.,2090.
• Citation: 32 Haw. 735
• Parties: P. CORREA v. W. A. RAMSAY, LIMITED. JULIA KING v. W. A. RAMSAY, LIMITED. WILLIAM ROCHA v. W. A. RAMSAY, LIMITED.
• Court: Hawaii Supreme Court

32 Haw. 735

P. CORREA

v.W. A. RAMSAY, LIMITED.

JULIA KING

v.W. A. RAMSAY, LIMITED.

WILLIAM ROCHA

v.W. A. RAMSAY, LIMITED.

No. 2090.

Supreme Court of the Territory of Hawai‘i.

Argued June 7, 1933.

Decided June 15, 1933.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. D. H. CASE, JUDGE.

Syllabus by the Court

Section 3663, R. L. 1925, after defining “workman,” excludes two separate and distinct classes of employees, (a) those “whose employment is purely casual” and (b) those whose employment is “not for the purpose of the employer's trade or business.”

When a corporation engaged in the business of selling and installing electric refrigerators employs a laborer whom it has never employed before and whom it is under no obligation to employ again, for the single purpose of assisting in the installation of two refrigerators, the duration of the employment being for a part of a day only, such employment is purely casual within the meaning of the Workmen's Compensation Act.R. A. Vitousek ( Smith, Warren, Stanley & Vitousek on the briefs) for W. A. Ramsay, Ltd., and Globe Indemnity Co. of New York.

F. Schnack (also on the brief) for City Transfer Co.

PERRY, C. J., BANKS, J., AND CIRCUIT JUDGE GODBOLD IN PLACE OF PARSONS, J., UNABLE TO ATTEND ON ACCOUNT OF ILLNESS.

OPINION OF THE COURT BY BANKS, J.

All of the above cases were separately instituted under the Workmen's Compensation Act. The facts upon which the right of each claimant was predicated being the same it was stipulated that the cases should be heard and determined in one proceeding. The industrial accident board entered an order awarding to each claimant certain compensation. The employer appealed to the circuit court and upon a trial de novo the circuit judge also entered judgment in favor of each of the claimants and against the employer. The cases are here on exceptions.

The circuit judge made the following factual findings: “On and prior to the 9th day of July, 1931, the City Transfer Company, an Hawaiian corporation, was in the hauling and express business. W. A. Ramsay, Limited, also an Hawaiian corporation, was in the business of selling and installing, among other things, General Electric refrigerators. If the Ramsay company had available trucks and sufficient men of its own to handle their own business they did their own hauling and installing. If not they would call upon the City Transfer Company, sometimes for men and a truck; at other times for men only; these men continuing in the general service and pay of the City Transfer Company. The evidence tends to show that this practice, that is, at times calling for both trucks and men, and at other times calling for men only, was quite common, occurring several times a month. On July 9th, 1931, among others in the general employ of the City Transfer Company were Plaucio Correa, William Rocha, and Rollin Bertram Hafford. On this day (July 9th), the Ramsay company requested the City Transfer Company to supply three men. The request was not made to the men, and no particular men were requested by Ramsay company. The request of Ramsay company was granted, the City Transfer Company placing at the disposal of Ramsay company the three men hereinabove mentioned, admittedly retaining them in its general service, and continuing to pay to them their weekly or monthly wage. Ramsay company paid to City Transfer Company 50¢ per hour for each man. A Ramsay company truck, driven by a Ramsay company driver, called for the men; the truck then proceeding to a home on St. Louis College heights. Here they were met by Mr. J. V. Melim, who was in the employ of Ramsay company as foreman, who had in charge the installation of an electric refrigerator in this home. The foreman of Ramsay company had sole charge of this undertaking and directed these three men as to just what they should do, and as to how it should be done. When this particular task was completed the foreman of Ramsay company directed the driver of the Ramsay company truck to drive with these loaned men in the truck to another residence, where another refrigerator was to be installed; the foreman saying he would meet them there. On the way down from the home on St. Louis College heights to the house where the second refrigerator was to be installed, the truck got beyond the control of the Ramsay company driver, tipped over, landing in a gulch; and, as a result of this accident, Rollin Bertram Hafford was killed, and Plaucio Correa and William Rocha injured.” From these findings he drew two conclusions of law, the first being that the Ramsay company was at the time of the accident the employer of the three men selected by the City Transfer Company for the use of the former in installing the refrigerators. For reasons that will presently appear we deem it unnecessary to decide on the correctness of this conclusion. Assuming its correctness, the question, however, still remains whether the employment of the three men by the Ramsay company was of such character as to render that company liable under the Workmen's Compensation Act. The circuit judge thought it was, basing his opinion on his construction of section 3663, R. L. 1925 (a part of the Workmen's Compensation Act), the pertinent portion of which is as follows: “ ‘Workman’ is used as synonymous with ‘employee,’ and means any person who has entered into the employment of, or works under contract of service or apprenticeship with, an employer. It does not include a person whose employment is purely casual or not for the purpose of the employer's trade or business.” The judge's reasoning, as appears from his written decision, was that the exclusion of a “person whose employment is purely casual” from the benefits of the Act was intended to apply only when the nature of the employer's trade or business, in connection with which the service was being rendered at the time of the injury, was outside his regular trade or business and therefore purely casual, and was not intended to apply to the purely casual nature of the workman's employment. In other words, that if the workman was injured while engaged in the regular trade or business of the employer, he was not within the exclusionary clause of section 3663 even though his own employment was purely casual. We think this was a misconstruction of the statute. It is clear enough from the phrasing of the quoted portion that the legislature intended to except from the scheme provided for the compensation of workmen two classes, (a) those whose employment is purely casual and (b) those whose employment is not for the purpose of the employer's trade or business.

In Aurora Brewing Co. v. Industrial Board, 277 Ill. 142, the court had before it the following statute, which is substantially the same as ours: “The term ‘employee’ as used in this act shall be construed to mean * * * every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including any person whose employment is but casual or who is not engaged in the usual course of the trade, business, profession or occupation of his employer.” The court placed the same construction on this statute that we think should be placed on ours, saying (p. 145): “* * * so that a workman cannot recover if his employment is casual. Neither can he recover if he is not engaged in the usual course of the trade, etc., of his employer.”

In

Western Union Telegraph Co. v. Hickman, 248 Fed. 899, the court had under consideration the following portion of a West Virginia statute: “All persons in the service of employers as herein defined, and employed by them for the purpose of carrying on the industry or business in which they are engaged (casual employment excepted), are employees within the meaning of this act, and subject to the provisions hereof.” The court's construction of this statute is disclosed in the first syllabus in which it is said: “Under the Workmen's Compensation Act of West Virginia (Acts 1915, c. 9, as amended by Acts 1915 [[Ex. Sess.] c. 1), which exempts from its operation persons in ‘casual employment,’ the exemption depends, not on the nature of the work performed, but on the nature of the contract of employment, and one hired for a limited and temporary purpose, though within the scope of the master's business, is within the...